EX PARTE CARLOS GILBERTO MURILLO BENAVIDES (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-70,431-01

EX PARTE CARLOS GILBERTO MURILLO BENAVIDES , Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. CR-4077-07-D IN THE 206TH DISTRICT COURT

FROM HIDALGO COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty, was convicted of intoxication manslaughter and sentenced to twenty years' imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary. He alleges that he was not informed that he was agreeing to be sentenced to the maximum combined thirty years' incarceration for the instant offense and an intoxication assault offense, Hidalgo County cause number CR-1810-07-D. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

A letter has been received by this Court, which was not signed by Applicant, requesting that the application be dismissed. The trial court shall first make findings as to whether Applicant requests that this application be dismissed. If Applicant does want the Application dismissed, the trial court shall so find and need not make any further findings. If Applicant does not want the application dismissed, then the trial court shall make findings of fact and conclusions of law regarding Applicant's claim that his plea was involuntary. The trial court shall make findings as to whether Applicant was fully informed of the consequences of pleading guilty. The trial court shall also make findings of fact as to the reasons that counsel advised him to plead guilty to the maximum sentence. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: October 15, 2008

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